Welcome to the Certificate Programme in Labour Dispute Resolution Practice offered by the Faculty of Law at Stellenbosch University in co-operation with the CCMA and the broader labour dispute resolution practice industry. We hope that you will find this course a wonderful learning experience.

The course works from the reality that the day to day practice of labour law at an advanced level and in its full spectrum largely is in the hands of labour law practitioners who often are non-lawyers, for example human resources, industrial relations and employee relations practitioners, owners and senior employees of businesses, labour consultants as well as organisers, legal officers and other officials of trade unions. For a variety of reasons it often is difficult for these practitioners to undertake a formal study both of labour law and the practice of labour law at the required advanced level.

As such, the goal of this course is to provide labour law practitioners with the opportunity to study both labour law and the practice of labour law at a level comprehensive and advanced enough to ensure a high quality of service delivery, either as prospective commissioners of the CCMA or bargaining council panellists, or in an advisory capacity to their employers and clients in both the private and public sectors. This point is important. There are many labour law courses where participants are given the opportunity to undertake a broad overall study of the principles of labour law. This course is more. First, the study of labour law principles will be undertaken at a detailed level. Secondly, this course is not only about principle, but also about practice. Law most often is taught in a rather sterile classroom environment where students are provided with static sets of facts and required to apply principles to facts. While it is true that this skill remains at the core of any practice of law (and labour law), the reality is that principles are not always static, facts are not always static and there are processes to follow in real life within which principles are applied. In short, you cannot study labour law without studying labour law practice and procedure as well.

Ultimately, this comprehensive course aims to provide participants – prospective commissioners of the CCMA, bargaining council arbitrators and other labour law practitioners – with the required knowledge and skills to function as ‘ready to practice’ arbitrators, or representatives of, or advisors to, their employers or organisations in all areas of labour law. Ultimately, the goal is to produce participants with -

appropriate knowledge of industrial relations and the labour market in South Africa;

appreciation of social justice;

knowledge and appreciation of diversity;

a deep understanding of labour law and related areas of law (for example, the law of contract and evidence) and the ability to apply this in practice;

the ability to write and draft legal documents (inclusive of rulings and awards) clearly and simply based on proper and ongoing research;

the ability to effectively participate in, or conduct and manage hearings;

the ability to effectively participate in, or conduct and manage negotiation, mediation and conciliation;

the necessary soft skills, interpersonal skills and communication skills and the ability to appropriately apply them during labour dispute prevention and resolution processes.

The CLDRP is one comprehensive programme, but for teaching purposes is loosely divided into a Development Programme in the Practice of Labour Law (which focuses on substantive principles of labour law and comprises the first part of the course), a Workshop in the Prevention, Mediation and Conciliation of Labour Disputes and a Labour Arbitration Workshop. Completion of all three components is required for successful completion of the course. This will, among other things, require of each participant to attend 4 weeklong seminars spread out over the year (the dates are given below).

3.1 Substantive Law: The Development Programme in the Practice of Labour Law

This is the first step towards obtaining the CLDRP. The goal is to provide prospective CCMA commissioners and bargaining council arbitrators, as well as other labour law practitioners with the opportunity to study both labour law and the practice of labour law at a detailed level. It is also an express goal to develop the writing and legal drafting skills of participants – a necessary prerequisite to the successful practice of labour law. During 2019, presenters will include seasoned labour lawyers and practitioners such as Craig Bosch, proff PAK le Roux, Avinash Govindjee, Christoph Garbers, Vanessa Pather and William Thomson.

This part of the programme is structured around 4 broad topics – Employment Rights (inclusive of unfair labour practices and discrimination law), Dismissal Law, Collective labour Law and Introductory Aspects of the Practice of Labour Law. Participants will be provided with prescribed materials. Participants have to attend two sets of lectures, each of five days’ duration. The lectures are presented and repeated in Stellenbosch and Midrand.

The dates for the lectures, which are compulsory, are:

Midrand/ Gauteng:

Workshop 1: (Substantive Law)

4 March – 8 March 2019 – Midrand

Workshop 2: (Substantive Law)

10 June – 14 June 2019

The venue for the Midrand lectures for Midrand Groups 1 and 2 is Accolades Boutique Hotel and Conference venue, Dale Road, Midrand.

Stellenbosch:

Workshop 1: (Substantive Law)

25 February – 1 March 2019

Workshop 2: (Substantive Law)

3 June – 7 June 2019

The venue for the Stellenbosch lectures will be the Law Faculty of Stellenbosch University: Old Main Building, corner Victoria and van Ryneveld Streets, Stellenbosch.

3.2 Workshop in the Prevention, Mediation and Conciliation of Labour Disputes

This five day workshop – presented by seasoned practitioners - is designed to enable prospective commissioners and panellists of bargaining councils as well as representatives of organisations to effectively participate in or conduct/ manage the resolution of labour disputes through different processes short of arbitration. In particular, the workshop will address, through practical presentations and assessment, aspects and topics such as self- awareness, communication and interpersonal skills, ethics, basic negotiation skills, mediation of disputes, conciliation in the context of alternative dispute resolution, statutory conciliation and closure in conciliation.

Please note that because of the anticipated size of the Midrand group of students, the whole Midrand group will be subdivided into a number of smaller groups for purposes of this practical workshop – this detail will be made available during the year.

On the final day of the workshop, participants will be assessed by experienced practitioners on their conciliation skills. This assessment will count 15% of your final mark. Without this assessment, the certificate cannot be completed.

The workshop dates are:

Stellenbosch: 29 July – 2 August 2019

Midrand: 5 - 9 August 2019 Midrand Group 1

12-16 August 2019 Midrand Group 2

19- 23 August 2019 Midrand Group 3

26 – 30 August 2019 Midrand Group 4

3.3 Labour Arbitration Workshop

This five day workshop – also presented by seasoned practitioners - is designed to enable prospective commissioners and panellists of bargaining councils as well as representatives of organisations to effectively participate in or conduct/ manage the labour arbitration process. In particular, through practical presentation and assessment, the workshop will address:

The participation in and conduct/management of dismissal and unfair labour practice disputes (distinguishing between different types of dismissals, procedural and substantive fairness, onus of proof in dismissal disputes, remedies for unfair dismissal disputes, elements of various offences, unfair labour practices, pre-dismissal arbitration, CCMA Guidelines-Misconduct Arbitrations);

Jurisdiction to arbitrate and other preliminary issues;

How to conduct an arbitration hearing;

Default arbitration;

Reviews;

Certification;

Variation and rescission;

Ethics in arbitration;

Presenting and managing evidence in an arbitration hearing;

Analysing evidence in a closing argument or an arbitration award;

Drafting relevant documentation – heads of argument, closing argument, award writing (structure and content, how to identify material facts, how to link facts to conclusions, how to make findings).

The dates for the Arbitration Workshop are:

Stellenbosch: 7- 11 October 2019

Midrand: 14 - 18 October 2019: Midrand Group 1

21 - 25 October 2019: Midrand Group 2

28 Oct – 01 Nov 2019: Midrand Group 3

04 – 8 Nov 2019: Midrand Group 4

4. APPLICATION, REGISTRATION, PASSWORD AND SUNLEARN

All prospective students have to properly complete the application form provided with this document and supply the required documentation. These applications (with attachments) have to be emailed to Prof Garbers at cgarbers@sun.ac.za

Once a student has been notified that his or her application is successful, the student will be required to register electronically (detail will be provided to students how to do this). Note that no student will be allowed to participate without submitting an application and without registering electronically (once the application is successful). Once a student has registered electronically you will receive a student number and password.

During the course of the year, students will be required to maintain access to the University’s e-learning platform (called Sunlearn) and students will have access to the university’s electronic library resources. Further information about this will be provided to all participants.

5. PRESCRIBED MATERIAL

Books and guides

The basic prescribed material for this course will be the relevant CCMA guides as developed by the CCMA over the years (hard copies are provided to students). In addition, participants will be provided with:

Basson et al The New Essential Labour Law Handbook (6 ed 2017)

Grogan Dismissal Law Juta (3 ed 2017)

A complete set of updated labour legislation

Other recommended books (these books will not be provided students, but students may wish to consult them as part of their studies):

Van Niekerk & Smit (eds) Law@work LexisNexis 3 ed 2015

Grogan Employment Rights Juta 2 ed 2015

Grogan Labour Litigation and Dispute Resolution Juta 2 ed 2014

Bosch & Myburgh Reviews in the Labour Courts LexisNexis 2016

Notes

All the lecturers who will speak to students during the workshops have been handpicked based on their ability to make labour law accessible. As such, notes, power point presentations and the like will be used during the workshops. Copies of these will be made available to students on SunLearn (see above).

Case Law

One important difference between this programme and other labour law courses you may have done is that in this course participants will be required to read cases in addition to the prescribed books and notes. There are three important reasons for this. First, even though we find most of labour law in legislation, legislation does not always tell us exactly what that legislation means and how it should be applied – we need court decisions to tell us what the law is and how it should be applied to disputes in practice (there will be many examples of this during the programme). Perhaps more importantly for our purposes – every court decision is an example of how that court went about analysing facts and law and applied the law to the facts of the case. As such, every court decision is an example of ‘legal argument’: reading cases will hone your ability to make a legal argument, which lies at the heart of your ability to practise labour law. Thirdly, any aspiring practitioner needs the skill to undertake ongoing research into evolving case law.

Stellenbosch University’s Electronic Resources

For the duration of this programme, students have access, via the University’s Library Webpage to electronic law databases. Detail on how to access these resources will be provided to all participants.

Please Note:

Your success in this course depends on what you are prepared to put into it. Great emphasis is placed on self-tuition. Despite the fact that lectures will be presented on all the important topics, your success will largely depend on your willingness to read and study the prescribed material on your own. At the same time, you have to complete a number of assignments during the year. Preparing for and answering assignments are seen as part of the learning material and learning experience.

6. STUDY METHODS

Most of you (because of the prerequisites for admission to the course) would have some experience of studying law and/ or studying labour law. At the same time, it is worth reminding ourselves that this is a demanding course.

One of the biggest challenges of this course will be to deal with all the reading. While the weeks of lectures are designed to assist you in unlocking the work, the responsibility remains yours to engage with the work. Remember the following:

Do not be intimidated by the amount of reading you are presented with.

As a first step, try to gain an overview of the materials and the information provided (the lectures will assist in this).

Try to deal with the reading matter in a structured way. Try to set aside certain times for reading and studying the materials. Avoid reading sporadically --- do not read a bit here and a bit there. Many of the more complicated concepts of labour law depend on a knowledge and understanding of simpler concepts. This means that you first have to gain or reaffirm your knowledge of the basic principles before you can go on to try and grapple with more complicated things.

Never read just for the sake of reading – one never remembers everything you read (you may have to read material more than once in order to grasp it properly). Read with a purpose and write while you read. The best way of studying remains forcing yourself to make summaries of key concepts, topics, or chapters as you work your way through the work.

Reading takes time. You will need time to work your way through the material and you will need even more time to prepare for and do the assignments. We know that it is often difficult to reconcile a full day at work with this type of study, but try to give yourself enough time really to get to grips with the contents of this course.

Remember to ask. The lecturers are there to answer any queries or questions that you may have about the work. Should something not be clear, should there be something that you do not understand, or even something that you want to argue about, please do not hesitate to contact us.

The important thing is that you read, study, and, above all, understand the prescribed reading matter.

7. ASSIGNMENTS

In this programme you have to do a total of 8 compulsory assignments (this does not include the final comprehensive assignment/ examination) – 5 of these assignments will be comprehensive written assignments and 3 will be short, knowledge based self-study assignments. These assignments will be posted from time to time on Sunlearn.

The assignments are an extremely important part of your studies. In all of the comprehensive assignments you must prove your ability to deal with the subject-matter (explained further below). The purpose of assignments is threefold:

to assist you to work through the study material

to teach you the necessary reading and writing skills

to teach you to make a synthesis from various sources; to gather material and present it in a logical, ordered fashion and with convincing arguments (merely copying the study material is not acceptable).

The proper completion of assignments is an important tool not only to force you to go through the prescribed work, but also to give you the opportunity to test your insight into the work (as opposed to mere knowledge). At the same time, the assignment questions should serve as an indication of the level of knowledge and insight we expect from students.

Although students may work together when preparing assignments, each student must write and submit his or her own individual assignment. In other words, each student must submit his or her own work. It is unacceptable for students to submit identical assignments on the basis that they worked together. Similarly, it is unacceptable for students to copy anything from the Internet or from any other source without acknowledgement and to pass it off as their own work. That will amount to plagiarism and all students concerned will be given a zero grade. Furthermore, these students may be subjected to disciplinary proceedings by the University.

Assessment of assignments

What is important is the following: Not only the content of your work matters, but also the way in which you write.

Because this course is not only about knowledge of principle, but also is designed to enhance your practice skills, rule number one is that WRITING MATTERS and WRITING MATTERS IN THIS COURSE.

17-19: Fairly clear and logical, a few problem areas, but meaning is evident. Most key ideas supported and developed, although not always fully. Some incoherence. Introduction and conclusion acceptable, but needs integration.

15-16: Acceptable. Some planning, some logical structure. Despite shortcomings, one can still follow. Some incoherence. Key ideas somewhat supported. Introduction and conclusion still acceptable but not quite well integrated (need to be fully integrated).

Below 15: Unacceptable in terms of abovementioned criteria

Language and technical presentation

20

16-20: Clearly expressed, very few errors, excellent use of grammatical structures, good vocabulary; Appearance professional (spacing, numbering, typing errors).

14-15: Most clearly expressed, good use of grammar, a few errors; neat appearance.

11-13: Fairly clearly expressed, reasonable use of grammar and reasonable spelling, but could be improved. Appearance acceptable but unimpressive.

10: Understandable, merely acceptable use of grammar and spelling; A few obvious errors in presentation.

What this means is that in answering assignments you need and must be able to display 4 skills to be successful in this course:

Knowledge of law and the ability and insight to apply it.

The ability to construct a strong and valid argument.

The ability to present that argument in proper language.

The presentation of your work in an acceptable format.

This, in turn, means that you need the ability to collect information (facts and law); the ability to analyse this information; the ability to organise this information; the ability to integrate this information; sometimes, the ability to be creative and, above all (because of the demands made on you), the ability to organize yourself.

The weight attached to the assignments

During the year, participants have to complete 5 comprehensive assignments (which together make up 30% of the final mark) and 3 self-study short assignments (which together make up 10% of the final mark), followed by a final, comprehensive assignment/ examination (which counts 40% of the final mark and is subject to a subminimum of 40% to pass the course). The final assignment has to be handed in by middle February 2020. Assignments will be made available to students electronically on Sunlearn.

In subject line of email: Surname, Initials followed by CLDRP2019 – Assignment 1

For example: GarbersCJ: CLDRP2019-Assignment 1

If not – assignments will be returned unmarked.

Feedback

Feedback will be provided on all the assignments.

8. FINAL ASSIGNMENT/ EXAMINATION: December 2019 – February 2020

In order to complete the programme, students have to complete a final all-encompassing take home assignment/ examination, which counts 40% of your final mark (and which is subject to a subminimum of 40%).

This assignment will be handed out to students after the arbitration workshops in October/ November 2019 and has to be handed in by middle February 2020.

9. PRACTICAL OBSERVATIONS

Students have to arrange with the CCMA to observe conciliation and opposed arbitration in practice. Students have to observe at least 2 conciliations (one prior to the conciliation workshop and one after the conciliation workshop) and 1opposed arbitration. Proof of these observations will add 5% to a student’s final mark for the course. Detail of contact persons at the different regional offices of the CCMA will be made available to students.

Please note that participation in a conciliation and arbitration does not satisfy this requirement.

10. COMPLETION AND CERTIFICATE

Students who successfully complete the programme will receive a Certificate of Completion from Stellenbosch University.

The final mark is calculated as follows:

Comprehensive assignments during the year: 30%

Short self-study assignments 10%

Conciliation 15%

Observations 5%

Final assignment/ Examination 40% (with subminimum of 40%)

TOTAL: 100

The overall required pass mark to obtain the Certificate is 50%.

PAYMENT

The fee for this programme is R32 500.00

This course has to pay for itself and is extremely expensive to present. Full pre-payment is required. In exceptional cases, students will be allowed to make a down payment of at least R16 500,00 with settlement of the outstanding balance prior to the second workshop. In these exceptional cases, students who have not settled the full fee prior to the second workshop will not be allowed to continue with the course. In addition, we shall retain an amount to cover our expenses incurred up to that point.

A FINAL WORD:

If, at any stage, you have further queries, please do not hesitate to ask.

Above all, I hope you find the course a stimulating learning experience.